Aaron v. Bay Ridge Operating Co., 162 F.2d 665

Aaron v. Bay Ridge Operating Co.

162 F.2d 665

2d Cir.

1947

Check Treatment

*2 SWAN, years HAND, agreements N. Before AUGUSTUS involved in FRANK, Judges. significant changes Circuit No other these suits. agreements precisely made in after the Act the same rate hour as was went into hours; effect. forty is, he re- merely ceived the contract rate—called the 1943-1945, years here in- *3 “overtime rate” in the all contract—for volved, in most instances the defendants If, fifty workweek, given in a he applied agreements the terms of these thirty paying plaintiffs. hours the so-called result, As a if one of given “straight twenty time” worked, in a say, fifty period, again so-called “overtime” the so-called “overtime” he period, rates; merely is, he received for the excess ten received the contract change appear Findings 43a, One is noted in trial 33 and court’s Appendix opinion. in the agreement following “wages The contained the scale”: Wage wage “4. The Scale: follows: scale shall be as Cargo Straight General Over- (a) Cargo every description Time General time includ- part Cargo, barrel oil when of General Cargo refriger- and all General handled in ' space temperature ator with the above freezing $1.25 $1.87% .............................. (b) Cargo, ballast, cargoes, Bulk and all coal including loading trimming coal ship’s purposes............. 1.30 own bunker 1.92% (c) bags Cement 1.30 ....................... 1.92% (d) hides, polos, ties, Wet creosoted creosoted shingles bags creosoted and soda 3.40 ash .. 2.02% Refrigerator (e) space cargo—meats, fowls and cargo—which other similar is to trans- be ported temperature with the in the re- frigerator freezing lower; at these rates paid gang.............. shall be the full 1.45 2.07% (f) Kerosene, gasoline naphtha in cases barrels, gangs, loaded when oil case fly and with 1.45 ......................... 2.17% 3.75 (g) Explosives ..... 2.50 (i) Bay, When handled down sf shall arc time when pier men leave the until pier. return to (ii) Bay, When handled down the men supply meals, shall own $1.00 meal shall be allowed employer. explosives, (iii) When such are cus- tomarily Bay handled down the any pier, handled at shall men be paid Explosive pay. rate dispute (iv) Any as to what exxilosives are, shall be settled the Bureau Explosives whose shall decision accepted by be final and shall be both sides. Cargo (h) Damaged ....................... 2.50 8.75 urge damaged (i) All < either fire or damage water, such causes unusual distress or obnoxious con- and, also, ditions, in all cases where cargo men ore called to handle under distress condi- tions. (ii) damaged cargo The shall not cargo sep- when sound ain comjtartment . arate is handled.” respect appeals, mere- and because of our hours, lie received for the excess ten judge, trial we have considered contractually-labelled “overtime able ly the us, with unusual care. None of rate.”2 however, agree opinion. able with that method judge held this trial judgments, We far conclude that in so payment correct, ground that must are adverse to agreements rates fixed reversed. “reg “straight constituted time” substantially the Act.3 7(a) of ular Faced with similar collective rate” referred to in § A. Walling bargaining agreements and with deciding, In relied facts so *4 1223, 624, respects many same, 62 Cir- Corp., 316 U.S. Seventh H. S.Ct. Belo ours, think erred. As cuit 1914 86 1716. We reached conclusion like L.Ed. in a Supreme year, this in recently May longshoremen the Great Lakes as as by opinion area; in Chief National Court, unanimous see Cabunac v. Terminals a 853, Vinson—confirming had been Corp., what 139 F.2d the able affirming Justice by Duffy, court and several Judge said sub nom. Inter- previously that other inferior courts4—decided Na- Longshoremen’s Association national v. agree limited to D.C., must be Corp., F.Supp. Belo case doctrine tional 50 26. Terminals “provision a for a contain ago, ments which Judge Cooper, few also months stipulation wage with a guaranteed weekly longshoremen conclusion reached this as to rate,” types of which, that Rico, an in Puerto in in case or not the result of agreement, here, represented counsel government as terms, cannot, by their bargaining, collective apparently advanced the “regular named rate” determine what very arguments is Fer- advanced here. See rate,” “regular said in the Act. Corp., D.C., That 70 S. F. ren Waterman v. S. Court, 149 Madi “actual fact.” See is an Supp. 1. Asselta, 67 Company S.Ct. Avenue v. son agree argument that with the We cannot Younger 1184, Walling citing 1178, v. may is unsound because it our conclusion Co., 325 man-Reynolds U.S. Hardwood require computations for each separate 1242, 89 L.Ed. 419, 424, 1705. 65 S.Ct. vary may from week to week at rates Payne, Helmerich & Walling See also v. Transport Overnight Motor Co. week. In 11, 29. 89 L.Ed. 37, 65 U.S. S.Ct. 323 1216, 572, 580, Missel, U.S. 62. v. 316 S.Ct. case, fact” con- the “actual instant In the 1682, Court said that 86 L.Ed. 1221, appears in the “regular rate” cerning the to an capable of reduction compensation sup- judge which trial findings of the are application of uniform hourly basis un- and which we ported evidence by the “regular statutory sense principle is dispute. do not defendants derstand the not vary hour does as rate inasmuch Appendix opinion, we set to this have In an though week week entire findings. portions of those pertinent forth with number of regular rate varies take this statement We worked.” counsel, appearing hours government Because reg- statutory element of meaning that the defendants,5 earnestly as- single principle ularity is met where importance of precedential grave serted 383; Walling 381, Cir., examples, F.2d v. suppositious 151 2 These are Co., Cir., Min. 9 Pacific illustrate, simple Alaska Consol. form, what ac 815; 812, Madi Asselta 149 F.2d v. tually 152 occurred. 139; Corp., Cir., F.2d consequence, 2 156 son Ave. one of his Conclu- aAs Walling Co., ‘straight Richmond Screw Anchor v. reads: “The time of Law sions * * * 780, Cir., note hourly’ F.2d forth in each rate set * * * argument we were told 5 In oral constituted collective government regular were the sole counsel coun at which were rate ” * * * employed for defendants here because sel ultimately pay any incorrectly will United States Defendants stated against defendants, judgment foregoing finding due war was a brief that “cost-plus” contracts between tha fact. 4 Walling Co., Grain the defendants. v. Uhlmann United States and explain applied Sundays to ob order “hours worked uniformly is rule holidays generally outside the ‘normal tain the rate.6 ” regular In hours.’ the in- inter the administrative We think that cases, stant facts disclosed in the suggest conclusion different pretations no findings,8 Saturday the hours exception The one conceivable from ours. afternoons, Sundays holidays Sunday holiday with work. has surely regular not “outside the normal discussing May In a letter of working hours.” Co., the Administra Stevedore Cleveland that, suggested It the contractual if compensation for that “overtime tor said * * * “straight “regular time” rate Sunday holiday rate,” any employee then that rate for due under credited toward overtime averaging week must ascertained Act,” regarded can be because “it forty the rates first hours of employee’s normal outside work in But Walling that week. hours”; consider the fol- but we must also Cementing Co., Halliburton Oil Well lowing: (1) letter of after *5 1056, 1059, Court that “in S.Ct. the stated written, 14, Judge Duffy May 1943was held Overnight Missel, 316 Motor Co. v. U.S. contrary; Longshore- International the see 1682, 572, 1216, 62 86 held S.Ct. L.Ed. we Terminal Association National v. men’s regular the rate was to be determined that 26, D.C., F.Supp. Corp., 50 affirmed by actually paid by dividing wages the the Corp., 7 Cabunac National Terminals v. actually worked.” See Ferren also v. Cir., (2) opinion pub- In an 139 F.2d 853. Co., supra; Walling Waterman S. cf. v. S. Manual, Wage Hour 1944- lished in the & Co., F.Supp. 54 Wm. Schollhorn page 227, 1945 the Assistant Cum.Ed. previous ruling, Solicitor referred to 1913 The Administrator’s Press Release Interpretative Bulletin the Administrator’s theretofore, employee an where stated that employer might 4, consider “as that an No. during a received more one rate compensation” workweek, extra amounts of overtime had that the Administrator ruled compensation employee employer pay an “for hours worked out- must the the working hours”; regular side normal or rate of and one-half his the “overtime one compen- hourly earnings the said that such extra for the entire average weekly might week, by computed dividing be considered overtime com- the sation pensation only compensated earnings by both the total number if the “hours at week,” normally for” “hours not worked worked of hours in the op- employees” giviug example employer “work have an as an an would thereafter holidays, alternative, compute Sundays, tion, day at a time of to employee normally does not one one-half times overtime rate at work”; opinion, however, employee went on which the the rate at speaking judge, satisfying dif requirements, The trial of the these purpose of ascertaining of due of ficulty compensation amounts the extra amount straight you time—paid if “once loose from cut the anchor —over and above compensation agreement,” overtime of employee’s “an said, him as for depending is, —that ivorked outside compensation vary would upon for regular working normal or whether worked for one employer hours— singlo regardless more than required in the course of whether he is one, of 6!) page union week”; F.Supp. compensation D.O. at such pay agreement.” (The 960. But Wall see, very this italics point, a» ing original.) Twyeffort, Inc., Cir., 158 F.2d during government’s 947, Perhaps because 944, single same week of a financial interest in these Ad- employee cases, by sev appeals different did employers. eral ministrator on these fol- filing (with frequent low his Indeed, they support plaintiffs’ practice con- permission) paragraph tentions. Thus 69 of Inter- our a brief discuss- amicus, pretative says interpretations. Bulletin No. “in determining this Appendix opinion, met See he has Findings requirements overtime 35 and 46. especially 19, 20, section 7 the page employer may F.Supp. consider at properly D.C., as over- See also, compensation paid by him note 2. forty. in excess of How- hours the hours worked in or week varies ever, qualified widely. daily Release later Irregularity both stated, “In 1913A, weekly Press Release which in- is characteristic advantage dustry. order to take of this [revised] rule, show records of must Employment longshoremen computing com-- method overtime dependent wholly selection pensation to follow.” he had determined ‘shapes’ men at another at Nothing in indicates that the evidence here pier head each where work is to be done. kept its either defendant so records. At three stated hours name- ly m., m., p. p. at 7.55 12.55 m. and 6.55 a. plaintiffs Counsel are allowed seeking employment group men gather in a $2,000.00 app for their services or semicircle, ‘shape,’ constituting the eals.9 pier the head of a where work is available. for determina- Reversed remanded The foreman then stevedore selects tion of due ac- the amounts ‘shape’ hire, such desires to men as he opinion. with this cordance off,’ is, to work until told to ‘knocked quit. The a man selection of Appendix shape obligation carries with it no on the Findings Fact part employer concerning any speci- length employment, except fied longshore industry “No. 14: “In the requirements reg- no of the Collective the Port of New York there are *6 relating specified Employ- of to minimum hours under ular or usual hours work. character, conditions. The highly employment is casual in more ment duration of depends entirely any major so in other the than determination of industry. primarily steamship the stevedore or company. This condition is the the product maritime; longshoremen during ‘straight the uncertainties of Where of work hours, time’ shipping conditions, customary the un- it is weather em- and ployer predictable ship to p. character and over- defer until about of 4.30 m. cargo land and the of decision as the men shall arrivals use the to do p. ‘shape’ device, work hiring likely as defined in after If it seems as m. that a required, work will Finding employer The casual character of be No. 16. the difficulty may definitely men, engage may work is both in the the or the reflected he employment, irregularity shape p. of the of order them to at 6.55 finding m. If the work, shape m., beginning stopping p. the and men are directed 6.55 hours of to at and uncertainty employer decides not to work (cid:127)and in the duration then employment during any specified period. night, In because of weather conditions or respects pattern long- work relating other circumstances to the arrival unique. handling cargo, liberty shoremen or is he at not any p. shape, to at 6.55 m. hire man suit, period During 15: in and “No. thereby obligation incurs no for many thereto, years prior longshoring for compensation. At times men been New York Port of has had fol- up shape directed to at hours than lowing excep- With rare characteristics. specified shape hours three hereinabove tions, longshoremen regularly work mentioned. stevedoring continuously for one or company, employer shift from 17: When men have been to em- “No. selected individually shape, ployer pier pier they organ- as from casual at are workers, want, men, working they gangs when and ized of about charge into in foreman, put loading where work is of a to work when and available. There or regular weekly daily, ship. employ- unloading gang or even a Where a is no has been Longshoremen may group, work for accustomed to work as ment. more it as- a single day, particular job. signed a or hatch or A gang dur- a may together hours, The total number of a few same hold for week. or it 9 Of-course, will, addition, court in that the district allowances for the services make court. operate long port, there is may docked in as a unit stevedores for knew ship, approximate work a hatch or or vessel’s definite departure type than week. date of a or for more a also cargo less than do, They may, discharged work as to Thereupon, and sometimes loaded. group frequent they for one em- made a concerning occasions determination best ployer, being regularly way cargo employed handling stead- at the low- possible ily. est employed plans Tentative for cost. men handling readjusted is work At the end of a cargo there to be done. from delayed be told to time gang may arrival, to time on account off,’ necessity repairs, the men delay ‘knock in which would event arrival of out- shape shaping' hour, again freight, at or on going a later conditions weather and oth- desired, if work next if er factors. so pier. available at the “Stevedoring companies never worked the any more necessary, ‘overtime’ than was be- adopted defendants in instances some the cause it was more economical the steam- practice posting on bulletin notices ship company, profitable and more to the ships, calling boards of the arrival stevedores, during ‘straight time’ customarily together, gangs, practice It was the common pier prior posted at the tele- notice stevedoring companies to auxiliary use phonic stevedoring communication from the equipment, largest and to work number boss, leader or hatch gang foreman to the day gangs within vessels’ limitations him, turn, to the individual space equipment. oí Permission to however, practice, bring This did not men. ‘overtime’ had be obtained departure from the about established stevedoring company steamship com- shape up at custom the men the cus- pany. The to work decision whether ‘over- times, tomary regardless of whether time’ was necessity controlled pier pre- had been sailing meeting scheduled dates in the case *7 day day. or even earlier the same vious liners, passenger of and otherwise fi- turning may “No. 19: The work which nancial on amount of considerations departure longshoremen in over-all later available for the Port the cost of ex- a York, day New of the the of and the time or ceeded cost of ‘overtime.’ The contract companies day stevedoring of such work the week when between and steam- the available, depend upon usually provided principally the lines that the former basis, ships port length tonnage plus and paid number of the of in would be the- on a stay, day ‘overtime,’ including to varies actual cost of ‘over- differentials, to week and to season season. and Social time’ insurance Se- part, curity most long- For the the taxes. “No. 20: of the Under the terms Col- preferred work during to shoremen the peri- during effect the lective in during daytime night. rather than The suit, previous under od in Collective of ‘overtime’ that the men amount worked a Agreements in effect over of depended extent to considerable many years, longshoremen in the Port companies by stevedoring they whom obligated York have New been to work of employed.” Sundays, of the week or afternoons, Holidays Saturday when di- steamship companies in “No. 25: The rected, special with limitations on Satur- preferred New Port of York nights. day cargo handling ‘straight confine the possible greatest time’ hours to extent. stevedoring 22: The “No. business in permission to ‘overtime’ They give work prior of New York to World War the Port such work is unavoidable. following characteristics: when The 50 II, had About charge over-riding for work eight stevedoring companies done percent work- seven each, ‘overtime’ deterrent be- steamship company where- ed intensity of the added cost stevedoring companies, 60 other cause as about competition ships between American contracting stevedores, worked known ships registry. foreign steamship number of lines. for a Before a regular gangs in try to available for work companies Stevedoring “No. 26: shape up con out defendants to Their were called avoid ‘overtime’ required. Some of shipping exigencies commodity ton as into on are entered tracts normally sought plaintiffs granted the permission nage basis. When in they get ‘overtime,’ piers receive when could not at other to work stevedores piers the defendants commodity tonnage rate work served addition to paid out actual additional amounts when ordered out only the sued Even herein. defendanls, however, Social Secur wages, plus gangs insurance and were re- customary ity quired shape work is less efficient man- up ‘Overtime’ tax. employ- ‘straight time’ hours. than work had assurance ner and no man except duration, reduction contribute to the of its guarantee factors ment or employees Agree- profits, if provisions stevedore’s the Collective ” pay under ‘overtime.’ for minimum worked ments specified employment.” conditions of work, work, Sunday Night “No. 30: Saturday and on cer- work afternoons employ- “No. 41: An examination of the compensated holidays, have been legal tain shows record of ment each prevailing higher at rates than the regular pattern. work followed no that their industry in longshore in the the Port they during which many weeks There were back York as far as 1887.” New at least employed by defendants. were not 1938, after Fall days In the They varying worked numbers Fair Labor Standards enactment of hours weeks. The number different Act, long- Agreement for Collective days did on the worked industry of New Port shoremen’s Many weeks greatly. varied introduced, work at with York reference hours; weeks more less than Sundays afternoons, night, Saturday car- variety handled They 40 hours. Holidays, cargo, the terms ‘over- general worked at various them goes, and some of paid for which shall be time’ and ‘overtime headers, or assistant gangwaymen times as parties, never- at the rate.’ overtime foremen. theless, Fair Labor passage of the suit the 42: “No. period in through the Act Standards ‘straight time plaintiffs the defendants general man- change no made actual performed rate’ for longshoremen as com- compensating ner of ‘straight time’ contract previously, pared ex- prevailing with that *8 performed work hourly rate’ for ‘overtime cept noted in Find- the circmstances under hours, plus ‘overtime’ during contract No. 43(a).” per- for work customary differentials During “No. 34: most headers, gangwaymen and as- formed as longshore required some the defendants suit paid rates were sistant foremen. clock, day in practically around the plain- regardless of the defendants Saturday nights. day out, except De- and 40 hours more or less worked tiffs employed groups ex- some fendant Huron exception single stated week, with the night Bay Defendant clusively work. on 43(a). Finding No. day gangs either to assigned its Ridge required, exigencies shipping night work as If, only if, longshore 43(a). and “No. day commingled frequently gangs its and 40 hours between worked more than man days different night work on work with noon, p.5 m. p.1 and 12 and m. and 8 m. a. working week. the same Fridays, inclusive, and be Mondays to on company stevedoring work- 35: No “No. Saturday of 12 noon on m. and 8 tween a. p. exclusively to 5 m. and from 8 a. m. days ed workweek, being of these none prior Even World mornings. Saturday paid an additional sum was holiday, he companies stevedoring had II some War 40 in excess of Saturday morning on to some work. fairly regular recourse hour, per plus, namely cents hours 62V2 mentioned the differentials applicable, peripd suit During 36: de- “No. 11; however, not he was No. Finding longshoremen in endeavored fendants it and per differe was unusual to start their work paid cent an additional Saturday Sunday.” on afternoon or ntials.* longshoreman A “(b) who worked on On Rehearing. Petition for week, general cargo hours excess of 40 it: being working of his ‘overtime’ all PER CURIAM.

hours, hourly paid was ‘overtime’ rate rehearing petition The denied. Our hour, for hours both with- an all $1.87% remanding decision the suits be in- should beyond and terpreted permit the district to con- court longshoreman any presented A sider

“(c) who worked matters under on it general cargo (luring 40 hours or Portal-to-Portal Act of more U.S.C.A. § hours, however, seq. not, ct We determine ‘overtime’ and also worked Satur- scope day during validity any portions a. from 8 m. to noon workweek, Act, $1.87%, since those same received the ‘over- matters have not been ar- rate,’ hourly Lours, gued appeals. ‘oven for the túne’ ‘straight hourly rate,’ $1.25, and Saturday

“(d) longshoreman A who worked on

general cargo eight Monday, p. m.,

from 8 in. to a. ten ‘overtime’ following each of four

days Saturdays also on from a. m. to noon, compensation ‘straight received CO., Inc., MORRISON-KNUDSEN PHŒ Saturday, Monday time’ rate for HARTFORD, NIX CO. INS. OF CONN. the ‘overtime’ rate for the other hours. No. longshoreman “(e) A who worked on Appeals, Eighth Circuit Court Circuit. general cargo for 40 hours or less July 14, 1947. week, all of being these hours within classification, the ‘overtime’ rate’

'overtime of $1.87% hour. the. desired, if so worked Sun-

days Holidays whenever work was ;o them, just available oilier Jay. working 45:

“No. ‘basic day’ ‘basic week’ referred to in the Collective were not normally, regularly usually by plaintiffs during the

period in suit. it plaintiffs,

was not unusual for the their defendants, start rather than * Finding charge group men, usually 11 roads: “In addition four, 1<>the of a provided wage ship); scale for in Oolloetivo in the hold of intituling Agreement, longshoremen, per ‘gangway- cents hour for work as a assigned (A gangwayman longshore whenever steve man.’ is a ineluding dores, defendants, per charge group men, man is in who specified part calling usually four, deck); form a of the work responsibility, paid, per for additional hour cents as an as compensation, custom, additional call sistant foreman. addi heading differentials, payment ed tional follows: were not increased when employee cents hour for work as a 'header.’ worked in excess of 40 (A longshoreman during- header who is in ‘overtime’ hours.”